Some Thoughts About Judge Sykes as a SCOTUS Nominee
Andrew Hyman

CNN has an interesting December 15 article titled Sykes, Pryor among top contenders for Supreme Court vacancy — sources.  In a previous blog post here, I criticized another of the 21 potential SCOTUS nominees listed by President-Elect Trump.  Judge Sykes is surely a good judge, and would be a much better nominee than anyone might expect from a president unconcerned about the original meaning of the U.S. Constitution, but still the list of 21 people probably includes safer options.

Please note that I am disinterested but not uninterested in who gets nominated to SCOTUS.  There is an all-too-common tendency among interest groups to attack reputations and distort records so as to defeat nominees, which is appalling, and also risks someone being nominated whom the interest groups dislike even more.  Still, responsible public criticism of potential nominees seems okay in my opinion, because assessing public records can be done from afar, even though  assessing character usually cannot.

The primary cause for my concern about promoting Judge Sykes to SCOTUS has always been the 2001 Wisconsin Supreme Court case of State v. Oakley, which was decided a long time ago, before Sykes was considered as a potential SCOTUS nominee during the second term of President George W. Bush.  In that 2001 case, then-Justice Sykes dissented from the court's approval of a probation condition which forbade further procreation by a father of nine children who had refused to pay child support.  Sykes’s dissent cited the Equal Protection Clause, and she also joined another dissent (written by Justice Ann Bradley) that relied heavily upon substantive due process (i.e. the controversial legal doctrine which Justice Scalia strongly opposed and which underlies Roe v. Wade).   As a matter of original meaning, neither the Equal Protection Clause nor the Due Process Clause remotely supports striking down such a probation condition, in my opinion, and not even the U.S. Supreme Court’s precedents required such a thing in that case.  Similar issues have cropped up before and since 2001, in other courts.  See, e.g., Gerber v. Hickman (9th Cir. 2002, holding that "the right to procreate…is fundamentally inconsistent with incarceration"); Goodwin v. Turner (W.D. Mo., 1988); Percy v. New Jersey Department of Corrections (N.J. Super. Ct. 1995).  All those decisions (aside from the dissents in Oakley) say that, outside existing conjugal programs, prisoners cannot generally procreate.  One may disagree with such a probation condition, and one may support legislation to forbid such a probation condition, but to concoct a constitutional argument against it is worrisome to me.

In a 2006 law review article, Judge Sykes commendably spoke out in favor of “judicial deference to legislative policy choices,” and  “respect for precedent and authoritative sources of legal interpretation,” as well as caution in imposing “broad-brush judicial solutions to difficult social problems.”  But there was this proviso:  “I will concede (as I must) that a court of last resort has the power to throw off these constraints….”  In my view, “the judicial power” is not infinitely elastic even as regards cases and controversies that are already properly before the court.  That law review article by Judge Sykes correctly criticized (for example) the Wisconsin Supreme Court decision in Ferdon v. Wisconsin Patients Compensation Fund, in which the dissenting justices said: “The Lochner Court's infamous usurpation of legislative power has been relegated to the ash heap of history.”  I would like to see evidence that Judge Sykes likewise believes that courts lack power (not just wisdom) when they completely throw off judicial deference to legislative policy choices, respect for precedent and authoritative sources of legal interpretation, and caution in imposing broad-brush judicial solutions to difficult social problems.  Her dissent in Oakley apparently points in the opposite direction, by interpreting the federal Constitution in a way that would bar legislative action consistent with its original meaning.

SCOTUS once put it this way: "In dealing with problems of interpretation and application of federal statutes, we have no power to change deliberate choices of legislative policy that Congress has made within its constitutional powers. Where congressional intent is discernible—and here it seems crystal clear—we must give effect to that intent" (emphasis added).  I hope the courts will more often acknowledge that they lack power, even in cases that are properly before them.

 

P.S. I've collected some info about the 21 potential SCOTUS nominees here.